Revised Practice Direction 12J: court’s extended role in safeguarding children from domestic abuse

Related Sector: Health & Social Care

Sir James Munby, President of the Family Division, has issued a revised Practice Direction 12J of the Family Procedure Rules 2010 which came into force on the 2nd October 2017. 

The amended Practice Direction 12J (PD) sets out how the courts and professionals should approach cases where there are allegations of domestic abuse. Whilst the principle of the PD is essentially unchanged there are significant additional considerations placed on the court and possibly social workers.

The specific aim of this PD is to offer a greater level of protection by the family courts towards a party (usually a parent) and a child who have been in a relationship/ lived in a household where there has been domestic harm perpetrated by the other party.

The main points from the PD include:

• The PD refers to domestic abuse rather than domestic violence and the definition has been extended to include physical or sexual as well as emotional, financial or psychological harm. This PD also widens the definition to include culturally specific forms of abuse including forced marriage, honour based violence, dowry related abuse and radicalisation. This is in line with the existing Home Office definition of Domestic Abuse.

• The family court must apply the following test: Does the statutory presumption in favour of contact apply? If so, is contact in the best interests of the child? If ordered, will that contact expose the child and parent with care to the risk of further harm?

• In all private law proceedings where domestic abuse is raised as an issue, the court should consider directing a report under S.7 from CAFCASS or Social Worker or S.37 from the Social Worker – the court must specify in the direction the issues that should be addressed in the report.

• The court should also consider if the child should become a party within proceedings and be separately represented. The court should then decide if a 'finding of fact' hearing is required to ascertain the nature and degree of any domestic abuse. If and when domestic abuse has been established or admitted, the next stage is for the court to consider if it would be assisted by a social work, psychiatric, psychological or other professional 'expert risk assessment' of the child.

• The court should only make an order for contact if it is satisfied that the emotional and physical safety of the child and parent with care is secured before, during and after any specified contact.

How will this PD12J impact social workers?
 
If the Local Authority are involved with a child through Early Help, as a Child in Need or through Child Protection concerns and the issue of domestic abuse is alleged, the court is likely to ask the Local Authority for a risk assessment.
 
Where a risk assessment has concluded that a parent poses a risk to a child or other parent, contact via a supported contact centre or contact supported by a parent or relative is not appropriate. The Local Authority may be required to provide supervised contact and a progress report for the court.

If a social worker is involved in providing Section 7 or Section 37 reports in private law proceedings for a child arrangement order in respect of contact, where domestic abuse is alleged, then they must be familiar with and compliant with PD12J.

Francesca Burfield
Bond Solon Subject Matter Expert & Children Social Care Trainer

This article was first published on Wednesday 12 October 2017.